Case: In re [Redacted], Non-U.S. Persons

19-00218 | Foreign Intelligence Surveillance Court

Filed Date: Dec. 12, 2018

Closed Date: March 5, 2020

Clearinghouse coding complete

Case Summary

For the Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.On December 12, 2018, the Federal Bureau of Investigation (FBI) submitted a draft application on the authority to conduct surveillance on foreign targets under the Foreign Intelligence Surveillance Act (FISA). After the FBI filed its official application in 2019, Judge Rosemary C. Collyer of the Foreign Intelligence Surveillance Court (FISC) released an opinion granting the warrant for surveilla…

For the Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.

On December 12, 2018, the Federal Bureau of Investigation (FBI) submitted a draft application on the authority to conduct surveillance on foreign targets under the Foreign Intelligence Surveillance Act (FISA). After the FBI filed its official application in 2019, Judge Rosemary C. Collyer of the Foreign Intelligence Surveillance Court (FISC) released an opinion granting the warrant for surveillance on March 5, 2020. Since the opinion revealed a new interpretation of the word "facilities" and the probable cause standard surrounding the term as it pertains to FISA section 1805(a)(2)(B), the Office of the Director of National Intelligence (ODNI) released a redacted version of the opinion on September 23, 2020. In preparing this opinion, the FISC sought input from Amici Curiae David Kris, former Assistant Attorney General for National Security, and Ben Johnson, former National Security Agency computer scientist and FISC technical advisor.

FISA section 1805(a)(2)(B) allows a FISC judge to grant a warrant application if he or she has probable cause to believe that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power," as long as the application specifies the facilities to be monitored. The Amici argued that "facility" should be interpreted in a narrow manner, though their definition was redacted. Judge Collyer rejected this meaning, instead holding that Congress intended to interpret the term "facility" in line with its ordinary, broad meaning. She focused on the language pairing "facility" with "places" in the statutory text, indicating that a facility should be read in a way similar to a "place." Judge Collyer added that the purpose of this section FISA is to engage with third parties to cooperate in surveillance, which may not involve collections of communications at all; if "facility" was read too narrowly in this section, such solicitation of cooperation would be barred, according to the FISC.

Judge Collyer continued her opinion by discussing how the definition of "facility" interacts with "electronic surveillance." She stated that "facility," as it pertains to this section, only requires a finding of a connection to a foreign target, not anything more specific. She distinguished "facility" in this context from warrants that demand more specificity, like the pen register/tap and trace (PR-TT) warrant, highlighting that the latter has much more stringent relevance requirements than the section being interpreted here. Judge Collyer added that the warrant application process for "facility" in this context was enough to protect facilities from illegal searches.

In a heavily redacted section, Judge Collyer discussed how she found probable cause for granting a warrant for surveillance of this particular facility. The information on the target's foreign connections was redacted, and the rest of the section focused on determining probable cause for multiple "facilities," here, phone numbers. Judge Collyer held that a judge should make a probable cause finding into the target's use of each of the phone numbers at issue, and finish the inquiry, instead of analyzing the probable cause of the use of all three phone numbers as a group simultaneously. She stated that this comports with how judges typically treat probable cause inquiries, and it would ensure that the probable cause standard is not altered depending on the form of the application; she posited that, if the extra layer of scrutiny were required, then the Government would simply file individual warrants for the phone numbers to avoid a higher scrutiny level for the numbers as a group.

Since the warrant was granted, the case is presumed to be closed.

Summary Authors

Ellen Aldin (12/15/2020)

People


Judge(s)

Collyer, Rosemary M. (District of Columbia)

Judge(s)

Collyer, Rosemary M. (District of Columbia)

Documents in the Clearinghouse

Document

19-00218

Opinion

March 5, 2020

March 5, 2020

Order/Opinion

Resources

Docket

Last updated Aug. 5, 2022, 3:11 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: Dec. 12, 2018

Closing Date: March 5, 2020

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiff is the Federal Bureau of Investigation

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

Constitutional Clause(s):

Freedom of speech/association

Unreasonable search and seizure

Special Case Type(s):

Warrant or subpoena application

Availably Documents:

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Warrant/Order allowing surveillance

Source of Relief:

Litigation

Order Duration: 2020 - 2020

Content of Injunction:

Monitoring

Recordkeeping

Reporting

Warrant/order for search or seizure

Issues

General:

Confidentiality

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues